Rakesh Kumar Pandey vs State of U.P.and Others

Rakesh Sharma, J.—Heard Mr. Y.K. Misra, learned counsel for the petitioners, Mr. D.K. Upadhyay, learned Chief Standing Counsel, for the opposite parties 1 and 2 and Mr. Shafiq Mirza who has put in appearance for the direct recruits, who have been impleaded as private respondents in these cases.

As the seniority list of Assistant Consolidation Officers working in the Consolidation Department of U.P. is under challenge in these writ petitions, they are being takenup together for common order.

The petitioners, who were promoted to the post of Assistant Consolidation Officers against the recruitment year 199798, have claimed their seniority above the direct recruits of the same year, raising a grievance that the Assistant Consolidation Officers, who are directly appointed or promoted in the same recruitment year, have to be given seniority, in accordance with the Rules 8 (3) of the U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as ''1991 Rules'' for the sake of brevity) and their names had to be placed in cyclic order, i.e. a promotee followed by a direct recruitee.

In the present case, the direct recruits were allocated the seniority from the years when allegedly vacancies to be filled by direct recruitment arose. The seniority has to be given from the date of order of substantive appointment, i.e. recruitment year 199798. In fact, the then Consolidation Commissioner, while preparing the seniority list on 18.9.2003 had made correct placement of the petitioners, in accordance with Rules. While preparing the seniority list, a complete turnaround has been taken unsettling the settled position.

According to the petitioners, the seniority list is absolutely in violation of the provisions of 1991 Rules and also the directions contained in the judgment of Hon''ble Apex Court as reported in 2000(7) Supreme Court Cases 561, Suraj Prakash Gupta and others v. State of J & K and others and a Division Bench of this Court''s decision dated 19.2.2008 passed in Civil Misc. Writ Petition No.10751 of 2004, Sanjay Sinha and another v. State of U.P. and others and three connected petitions.

The petitioners were initially appointed as Consolidators in the Consolidation Department in various districts. They were appointed after following the due procedure, as prescribed in the relevant Service Rules, prevailing at the relevant time and after considering satisfactory service and experience, they were promoted to the post of Assistant Consolidation Officer on various dates in the year 1997. These promotions were made in the recruitment year 199798 and according to Rule 8(3) of 1991 Rules, they were entitled to their placement above the direct recruits of the same year. The respondents in these petitions were directly appointed on the post of Assistant Consolidation Officer, on the basis of recommendation of U.P. Subordinate Services Selection Commission and as per the recruitment process of U.P. Revenue Consolidation Service Rules, 1992 (in short, it has been referred to as ''1992 Rules''). The petitioners were also formally regularly promoted after following the due procedure under the 1992 Rules. The direct recruits were appointed on 18.8.1997 and as such, both the groups, promotees (petitioners) and the direct recruits (respondents) became the Assistant Consolidation Officers in the same recruitment year, which had commenced on 1.7.1997 and came to an end on 30.8.1998. Thus, all the Consolidation Officers, whether directly appointed or promoted, became the members of the Assistant Consolidation Officers in the above said recruitment year and borne out in the cadre to hold the post of Assistant Consolidation Officers.

As per learned counsel for the petitioners, according to the Rule 5 of 1992 Rules, 67% posts of Assistant Consolidation Officers were to be filled by the direct recruitment through U.P. Subordinate Services Selection Commission and 33% by promotion from the post of Consolidators. In these rules ''substantive appointment'' and the ''recruitment years'' have been defined.

Rule 8 of the 1992 Rules provides that an Assistant Consolidation Officer has to be a Graduate from a recognized University. Thus, without a Graduate, the person cannot be appointed on the post of Assistant consolidation Officer by the direct recruitment.

Rule 10 of the 1992 Rules provides that the candidates must have attained 21 years of age on 1st July of the recruitment year. The number of vacancies were to be determined under Rule 14 of the 1992 Rules. Rule 16 deals with the procedure of promotion through Commission on the basis of seniority, subject to rejection of unfit. Rule 18 provides for preparation of the joint select list of direct recruitee as well as promotees, in accordance with the quota prescribed. Later on, these Rules were amended and the quota of promotees was raised. Thus, the ratio of 50:50 is made applicable.

Rule 22 of the 1992 Rules deals with determination of the seniority from the date of substantive appointment in accordance with the 1991 Rules. Thus, according to the Scheme of 1992 Rules, it is clear that the seniority is to be reckoned from the date of substantive appointment. While preparing the impugned seniority list dated 28.7.2005, the respondent No.2 had not correctly interpreted the 1992 Rules.

Learned counsel for the petitioners submits that the seniority of promotees vis�vis direct recruits shall have to be determined in a cyclic order, i.e. a promotee followed by a direct recruitee. In view of Rule 8(3) of 1991 Rules, the case of the petitioners is fully covered, as they were promoted on 16.12.1997, while the respondents were directly appointed on 18.8.1997, i.e. in the same recruitment year. The promotions of the petitioners and the direct recruitment of the respondents on the post of Assistant Consolidation Officer were made in accordance with the Rules 15, 16 and 17 of the 1992 Rules and after the selection by both the sources, a joint select list was required to be prepared and their names had to be placed in the said list, as required in Rule 18 of the Rules 1992. Their seniority should have been determined from the date of their substantive appointment, as both the group of officers had joined the post of Assistant Consolidation Officer in the same recruitment year and almost simultaneously. As per the scheme of the Service Rules, appointment of both the groups of officers the petitioners and the respondents should have been made in accordance with the joint select list prepared under Rule 18 of the 1992 Rules and the direct recruits/promotees were entitled to be given seniority based on recruitment year 199798.

Sri Y.K. Misra, learned counsel for the petitioners has drawn the attention towards the provisions contained in 1992 Rules and the relevant provisions of 1991 Rules. According to him, respondent No.2, the then Consolidation Commissioner on 18.9.2003 had prepared the tentative seniority list, in which the promotees were placed at appropriate places. For example, petitioner Rakesh Kumar in Writ Petition No.6015 (S/S) of 2005 was placed at 144 and the direct recruit respondent No.4, Ashok Kumar was placed at Sl. No.145. The direct recruits were thus placed below the promotees. This seniority list was prepared, on the basis of the date of substantive appointment in cyclic order, as has been required under the Scheme of 1991 Rules. The petitioners'' appointment was shown to have been made on 16.12.1997, whereas the respondentsdirect recruits were shown to have been appointed on 18.8.1997. In fact, the tentative list was in order as per the Rules. However, in the impugned seniority list dated 29.7.2005, the direct recruits were given seniority with retrospective effect when they were not even borne in the cadre. Some of them were not graduates, whereas some of them had not attained the age of 21 years. Some exemplars were cited by the learned counsel for the petitioners before the Court to show that one Amit Singh, who was appointed on 18.8.1997 as ssistant Consolidation Officer, was assigned the seniority in the recruitment year 199596, when he had not completed even graduation and also had not attained the age of 21 years. As per statutory rules contained in 1991 Rules, he was not eligible to be appointed as Assistant Consolidation Officer in the year 199495. How can seniority be assigned to such a candidate? The markssheet of B.Sc., Part III examination of Sri Amit Singh has been palced as exemplar to demonstrate the strange situation. Even on the date of advertisement and selection, some candidates, likewise, respondent No.12 had completed LL.B. In the year 1996, meaning thereby, in the recruitment year 199495, he was a student of LL.B. pursuing his studies.

From these exemplars, learned counsel for the petitioners had tried to demonstrate that such an exercise of assigning seniority to the candidates with retrospective effect, when they were not even members of service appointed in the department, when they were the students and some of them even not attained the age of 21, cannot be said to be legally valid.

To strengthen his submissions that his case is squarely covered by the judgments, he has relied upon the cases of 2000 (7) Supreme Court Cases 561, Suraj Prakash Gupta and others v. State of J & K and others, Division Bench of this Court''s decisions dated 19.2.2008 passed in Civil Misc. Writ Petition No.10751 of 2004, Sanjay Sinha and another v. State of U.P. and others and three connected petitions and dated 10.3.2008 passed in Special Appeal No.1304 of 2003 Arun Kumar Saxena v. State of U.P. and others and other connected Appeals.

Mr. D.K. Upadhyay, learned Chief Standing Counsel and Mr. Shafiq Mirza, learned Counsel appearing for the direct recruits have strongly opposed the writ petition. According to them, the seniority list dated 29.7.2005 has been prepared, in accordance with the provisions contained in 1992 Rules and 1991 Rules. Further, this was in consonance with the orders passed by this Court in Writ Petition No.52006 of 2004, D. K. Sharma v. State of U.P. and others, Writ Petition no.34011 of 2004, A.K. Lal v. State of U.P. and others and in Writ Petition No.7036 of 2003, P.K. Yadav v. State of U.P. and others. The seniority has been assigned to the respondentsdirect recruits, on the basis of the year of vacancy/batchwise because in the case of direct recruitment, requisition was sent to the Selection Commission, for the vacancy of specific recruitment year and after their selection, the appointment letters were issued against the vacancies of recruitment/selection year. The respondentsdirect recruits have been given seniority of the year 199495, being Assistant Consolidation Officers of direct recruitment quota of vacancy year 199495, whereas the petitioners were promoted on the post of Assistant Consolidation Officers on 16.12.1997, but these promotions were not against the available vacancy meant for promotion quota. It was beyond quota, i.e. petitioners have been given seniority subsequently in the vacancy year of 199899 under the provisions of 8(3) (1) of the 1991 Rules. In the year 99899, the vacancies and promotion quota were available. When the appointments were made in excess of the prescribed quota, then the appointment of excess quota will be extended to subsequent years. Due to these reasons, the petitioners were not placed in the joint select list, alongwith the direct recruits because their vacancy year is not same. They cannot be treated to be belonging to one and same batch. According to learned counsel for the respondents, there was no violation of the Apex Court''s judgment of Suraj Prakash Gupta and others v. State of J & K and others (supra).

Sri D.K. Upadhyay, learned Chief Standing Counsel has tried to justify the stand by placing yearwise breakup of vacancies in various quotas. According to him, the vacancies were not available for promotion in the earlier years. However, the petitioners were accommodated against the vacancies of next years meant for promotion quota. The petitionerspromotees and the respondentsdirect recruits have been placed at correct places in the seniority list. Earlier seniority list dated 18.9.2003 was against the 1991 Rules and 1992 Rules and as such, it was subsequently corrected by the impugned seniority list dated 29.7.2005 and it is always open for the Consolidation Commissioner to correct administrative mistakes.

Sri Upadhyay has further submitted that the recruitment by the Commission through examination/interview etc. is conducted by the U.P. Subordinate Services Selection Commission, therefore, there is no difference in the selection year and the vacancyyear, while there is no similarity in the selection year/vacancy year, because in previous year, there was no recruitment in same vacancy year, that is why seniority has been given as per vacancy year. The petitioners were promoted in excess of their quota, therefore, they were not given seniority with the direct recruits of the year 199495.

In rejoinder, Mr. Y.K. Misra, learned counsel for the petitioners has reiterated his earlier stand and highlighted the provisions contained in the 1991 Rules and 1992 Ruels. According to him, the seniority list has been prepared ignoring the legal proposition of law, which has been settled by the Hon''ble Apex Court that direct recruits cannot claim seniority with retrospective effect, when they were not borne in the cadre. He has challenged the breakup details of vacancies as placed by the learned Chief Standing Counsel. He has drawn the attention of this Court towards the various paragraphs of the writ petition and para 13 of the rejoinder affidavit to demonstrate that prior to 1989, out of 274 posts, only 78 Assistant Consolidation Officers were working under the promotion quota and thereafter, by different orders, 170 Consolidators were promoted on ad hoc basis, to the posts of Assistant Consolidation Officers, although they were fully eligible for regular promotion and the vacancies under the promotion quota were also available. Including 170 ad hoc promotees, the total number of Assistant Consolidation Officers working under the promotion quota was 248. Thus, 26 posts in promotion quota were still vacant. The promotion of the petitioners was made in the year 1997 under the promotion quota against the available vacancy. Therefore, it is wrong to say that the petitioners were promoted in excess of their quota. No explanation has been given by the learned Chief Standing Counsel till date to rebut these details.

Heard learned counsel for the parties at length and gone through the pleadings of the parties including the tentative seniority list, which was prepared on 18.9.2003 and the impugned seniority list dated 29.7.2005. I have also perused the relevant provisions contained in 1991 Rules and 1992 Rules, in the light of the facts and submissions putforth by the contesting parties.

In the present case, both the set of Assistant Consolidation Officers, directly recruited and promotees, became Assistant Consolidation Officers in the recruitment year 199798 commencing 1.7.1997 to 30.8.1998, as the direct recruitees were appointed on 18.8.1997, whereas the petitioners were promoted on 16.12.1997. As has been held by the Apex Court in the case of Suraj Prakash Gupta and others v. State of J&K and others (supra), direct recruits cannot claim seniority with retrospective effect, when they were not born in the cadre. It was demonstrated before the Court that some of the direct recruits were assigned the seniority, when they were not even the graduates and were pursuing their studies in educational institutions and some of them even had not attained the age of 21 years, which is required under Rules. The direct recruits have been given seniority with retrospective effect. As per Scheme of relevant 1991 Rules, it provides for reckoning the seniority with effect from the date of substantive appointment, but in the present case, the respondents 1 and 2 had assigned the seniority to the direct recruitsrespondents herein with retrospective effect, which is not permissible. Both the groups of Assistant Consolidation Officers were appointed directly or promoted, but all of them became members of the cadre of Assistant Consolidation Officer in the same year, i.e. 199798 and it would be appropriate if one group is treated not differently and seniority is given with effect from the date of order of appointment, i.e. substantive appointment, when they became members of the relevant service. According to Rule 8 of the 1991 Rules, both direct recruits and the promotees have to be placed in the seniority list in cyclic manner. In the year 2003, this exercise was done but as has been submitted by the learned counsel for the petitioners, a turnaround has been taken, while preparing the impugned seniority lsit on 29.7.2005. There were no bona fide reasons and compelling circumstances or change of material in doing so.

Learned Chief Standing Counsel has failed to rebut the submissions of learned counsel for the petitioners regarding availability of the vacancies in previous years to be filled through promotion. It was highlighted before the Court on the basis of the material that vacancies in promotion quota were available throughout and even in the recruitment year 199798, required vacancies were available to accommodate the petitioners. According to the petitioners, there were 26 vacant posts at the relevant time. This averment has been mentioned in para 13 of the rejoinder affidavit. Substantial vacancies were available in the year 1997 and the petitioners were rightly promoted against the vacancies in promotion quota. There is no rebuttal to this factual submission.

A perusal of the tentative seniority list dated 18.9.2003 reveals that the same was prepared by the then Consolidation Commissioner strictly in accordance with the date of substantive appointment and according to the 1991 Rules. A Division Bench of this Court in the case of Sanjay Sinha and another v. State of U.P. and others and three connected petitions (supra) has held that even after the appointments have been made in excess of the quota, the seniority has to be determined with respect to the date of substantive appointment only. Now after 11 years, the promotions of the petitioners, which effected in the year 1997, cannot be challenged.

Moreover, the petitioners have substantiated their argument that in fact, the vacancies were available and they were rightly promoted against the available vacancies in promotion quota. The seniority of the promotees of 1997 has to be determined with reference to the date of substantive appointment i.e. 16.12.1997. This date cannot be postponed to subsequent years.

Respondent No.2 has misinterpreted the provisions of Rule 8 of the 1991 Rules. Learned Chief Standing Counsel has failed to substantiate his case that there was any statutory provision reckoning the seniority with effect from the year of vacancy, when some of the respondents were not even Graduates and has not attained the age of 21 years which was a precondition, in the 1992 Rules for appointment on the post of Assistant Consolidation Officer in the Consolidation Department.

In view of above discussion, the writ petition deserves to be allowed and this Court is of the opinion that the seniority list prepared contrary to the provisions contained in 1991 Rules and 1992 Rules deserves to be quashed. As indicated above, the seniority cannot be assigned from retrospective effect, when the direct recruits were neither borne in the cadre nor appointed. There appears to be no provision for reckoning the seniority, with effect from the year of vacancy.

Accordingly, the writ petition is allowed and the impugned seniority list dated 29.7.2005, contained in Annexure 1 to the writ petition, is quashed. The respondents are restrained from giving effect to the impugned seniority list and the same shall not be used for making any promotion or for providing any benefits to the concerned officers. The opposite parties 1 and 2 are directed to prepare the fresh seniority list taking into account the date of substantive appointment of Assistant Consolidation Officers, i.e. 16.12.1997 in the case of promoted officers and 18.8.1997 in the case of direct recruits. The promotees of 1997 shall have to be placed above the direct recruits of that year.

(Petition allowed)